ARTICLE 26 -- PROTECTION OF PERSONNEL OF NATIONAL RED CROSS SOCIETIES AND OTHER RECOGNIZED RELIEF SOCIETIES

PARAGRAPH 1 -- ASSIMILATION OF VOLUNTARY PERSONNEL TO OFFICIAL PERSONNEL

1. ' Voluntary assistance '

Whereas the two preceding Articles dealt with the regular medical personnel of the armed forces, the present Article and the one which follows it concern the staff of private relief societies (the so-called voluntary aid societies) which have undertaken to assist the Medical Service [p.225] of the armed forces. The expression "Voluntary aid societies" does not mean that the staff of such societies are necessarily unpaid. It means that their work is not based on any obligation to the State, but on an engagement accepted of their own free will. Article 26 deals with the staff of societies belonging to a belligerent country which assist the Medical Service of their own armed forces. They are category 4 in the list given at the beginning of our commentary on Chapter IV. Confirming a long-established practice, the protection of the Geneva Convention was extended in 1906 to the personnel of National Red Cross Societies and other recognized relief societies that assisted the Medical Service of the armed forces. Up to and including 1929, the Convention only spoke of "recognized aid societies". This term naturally included the National Red Cross Societies, which are by far the most important of the societies assisting the Medical Service, and were originally set up for that very purpose. They were not specifically named, however, doubtless out of excessive modesty. The 1949 Diplomatic Conference rightly put an end to this anomaly. The Rapporteur of the Committee concerned was at pains to point out that the Committee, in referring to them by name in Article 26, wished to "pay a special tribute to the Red Cross Societies, thus recognizing the great services they had rendered on all the battlefields of the world". (1) It is gratifying to note that the Article, by granting National Red Cross Societies a recognized status in international law, places them on a still firmer foundation than in the past. Even if National Red Cross Societies are by far the most important of the societies assisting Medical Services, they are not the only ones. A certain number of other recognized societies provide services of a similar nature, the oldest being the Knights of Malta and the Order of St. John of Jerusalem. (2). Governments could scarcely give the Red Cross a complete monopoly of voluntary relief to the wounded, thereby [p.226] refusing in advance all other co-operation; such help is never in excess in time of war and it would have been wrong to discourage it. Consequently, Article 26 mentions "other Voluntary Aid Societies" in addition to National Red Cross Societies, and places them both on the same footing. The 1949 Convention, like its predecessors, grants the staff of Red Cross Societies and other societies the same legal status as medical personnel of the armed forces, both categories being placed on the same footing in all respects. They will therefore have the same right to protection, and the same treatment in the event of capture. As the provisions relating to regular medical personnel also apply to the staff of voluntary societies, reference should be made to the comments on Articles 24 , 28 , 30 and 31 . (3)

2. ' Conditions of protection '

When granting the medical personnel of voluntary relief societies the same immunity as medical personnel of the armed forces, appropriate safeguards had to be introduced to prevent uncertainty and abuses. It is proposed to consider in turn the five conditions to be observed, all of them obligatory: (a) The Red Cross Society or other society must be duly recognized by the Government of its home country. This must not be confused with the recognition accorded by the International Committee of the Red Cross to a new Society which becomes a member of the International Red Cross. Recognition in the latter case is peculiar to the Red Cross and in any case implies prior recognition of the Society by its Government. As we have seen, a Government may recognize several societies as auxiliaries to the Medical Service; whereas the International Committee can only recognize one Red Cross Society in any one country. (b) Recognition alone is not sufficient. The Government must also authorize the society to lend its assistance to the Medical Service of the armed forces in time of war. In practice, authorization may often coincide with recognition, both resulting from the same official decree. It may also follow logically in some cases from the Statutes of the society in question, where these have been approved by the Government. [p.227] (c) A Government which has authorized one or more societies to assist its Medical Service must, at the latest before actually employing their personnel, notify all other signatory States of the fact in peacetime, or its adversary or adversaries in time of war. This safeguard is in the interests of the personnel themselves. The point will be considered below in connection with paragraph 2 of the present Article, which deals with it. (d) The staff of voluntary societies must, in time of war, be "subject to military laws and regulations", and (as we shall see under (e)) must be employed on the same duties as the personnel of the medical services. Finally, they are to operate under the "responsibility" of the State (Article 26, paragraph 2 ), and it is from the military authorities that they will receive their badges and identity cards. From all this it follows that in practice the staff of voluntary aid societies are temporarily attached to the Medical Service, and are under its orders. But attachment and equality of status do not mean loss of identity. There is nothing in the Convention which implies that they become members of the Medical Service and consequently part of the armed forces. If that were so, the societies would lose their essential and traditional quality of giving voluntary aid. The conditions under which voluntary personnel lend their aid to the official Medical Service and, in the last analysis, their status, will depend on the municipal law and the decisions taken in each country. Unless other provision is made, such personnel will retain civilian status. Their position will be the same as that of their colleagues in the Medical Service, except that they do not become members of the armed forces. This is, in our opinion, as it should be, and would appear, incidentally, to be the solution which has most often been adopted in practice. (4) In many countries the Red Cross recruits its personnel mainly from persons exempted from military service. In the absence of any stipulation in the Convention the question of the uniform for voluntary personnel also remains a matter for national arrangement. It is not difficult to imagine a State refusing the aid of a society unless the members wear the uniform of the Medical Service, [p.228] with (possibly) some special marking. But in most cases they will probably wear their society's own uniform. Civilian clothing is not excluded in theory, but for practical reasons is unlikely to be worn. (e) The personnel of relief societies are to be employed on the same duties as the personnel of the Medical Service. The fundamental importance of this provision has not always been realized, and errors and confusion have resulted. Some societies have thought that, having been recognized and authorized to assist the Medical Service, their entire personnel was entitled to immunity in time of war. It should, therefore, be emphasized that protection is conferred only on personnel exclusively engaged in the duties set forth in Article 24 , namely, the search for, or the collection, transport or treatment of the wounded and sick of the armed forces, the prevention of disease in the forces, the administration of army medical units and establishments, and service as chaplains attached to the forces. Circumstances may lead to a position where, in a country at war, the whole personnel of the Red Cross Society will work for the Medical Service. But as a general rule only a part of the personnel will be employed in this manner, and the remainder will be engaged, say, in medical or social relief work for the general population. Similarly, members and officers of National Red Cross Societies will only enjoy protection if they are attached to the Medical Service and exclusively engaged in the duties mentioned above. Personnel of relief societies who do not fulfil these conditions will, if they fall into enemy hands, be covered by the provisions of the Fourth (Civilians) Convention or, in the case of persons following the armed forces, those of the Third (Prisoners of War) Convention. (5)

PARAGRAPH 2 -- NOTIFICATION

We have already studied the contents of paragraph 2 when considering the conditions for the protection of voluntary personnel. (6) Notification must be by one State to another. A Government which has authorized one or more relief societies to assist, under its responsibility, [p.229] the Medical Service of its armed forces, must officially communicate the names of such societies to other States in peacetime, or to enemy Powers in time of war. Notification must in any case be made before the personnel of such societies are actually employed. In default of notification, voluntary personnel may find that, although they comply with the other conditions prescribed, the enemy refuses to accord them the privileges to which they are entitled as medical personnel. This difficulty could hardly arise, however, in the case of National Red Cross Societies. Their existence is a matter of common knowledge. There is known to be one, and only one, such society in each country; they are accorded recognition by the International Committee of the Red Cross, and this is only granted after they have been recognized by their own Governments; they take part in the International Conferences of the Red Cross at which States are also represented. Nevertheless, to avoid any possibility of misunderstanding it is well to observe the formalities required by the Convention. No special procedure for notification is laid down. In wartime it will normally be made through the intermediary of the Protecting Power.

(2) [(2) p.225] The Knights of Malta requested the 1906 and 1929 Diplomatic Conferences to place them on the same footing as the National Red Cross Societies and to include an express provision to that effect in the Convention. This proposal was not accepted; but the 1929 Conference stated in its Final Act that it considered the provisions of the Geneva Convention governing the position of relief societies, to be applicable to the Knights of Malta and to other charitable Orders of a similar nature;

(3) [(1) p.226] We are only dealing here with the personnel of National Red Cross Societies. Their equipment is dealt with in Article 34;

(4) [(1) p.227] The Portuguese Regulations of 9 March 1923 relative to the Active Corps of the Red Cross, give some interesting details. Inter alia, the Active Corps "forms a special unit which enjoys the same protection as if it formed part of the armed forces". See ' Recueil de textes relatifs à l'application de la Convention de Genève, ' published by the International Committee in 1934, page 621;

(5) [(1) p.228] See Article 4, A (4), of the Third Geneva Convention of 1949;